Law Exam Review

Rule of Law

Each person is treated equally by the same standards, no matter their race, gender, etc. No person is above the Law.

What did R v Daviault accomplish?

Self-induced intoxication can not be used as a defence for sexual assault

What did R v Ewanchuk accomplish?

Implied defence is not a thing, and therefore can not be used as defence against sexual assault cases

What did R v Lavallee accomplish?

Legal recognition of battered woman syndrome, which protects women that have been abused by partners, spouses, or family members

R v Latimer

Sentenced for second degree murder after murdering his severely disabled daughter to “put her out of her misery”. Still had to have a mandatory minimum sentencing of ten years under the criminal code.

What was the significance of R v Morganthaler?

The Criminal Code provisions relating to abortion were unconstitutional because they violated women's Charter guarantee of security of the person - allowed abortions to be a legal procedure

R v Keegstra

Spread misinformation about the Holocaust and hated on Jewish people to his history class, tested the balance between the right to freedom of speech outlined in the Canadian Charter of Rights and Freedoms and the law's limits on hate speech stipulated in the Criminal Code.

What was the outcome of R v Marshall?

Affirmed the hunting, fishing, and gathering rights promised to Indigenous peoples in the Peace and Friendship Treaties of 1760 and 1761.

What is the significance of the Person’s Case?

It marks the day in 1929 when the historic decision to include women in the legal definition of “persons” was handed down by Canada's highest court of appeal. This gave some women the right to be appointed to the Senate of Canada and paved the way for women's increased participation in public and political life.

Treaty of Westphalia (1648)

The collective name for two peace treaties signed in October 1648 in the Westphalian cities of Osnabrück and Münster. They ended the Thirty Years' War and brought peace to the Holy Roman Empire, closing a calamitous period of European history that killed approximately eight million people

League of Nations (1919)

Was the first worldwide intergovernmental organisation whose principal mission was to maintain world peace. It was founded on 10 January 1920 by the Paris Peace Conference that ended the First World War.

Universal Declaration of Human Rights (1948)

• An international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings.

• Created after the second world war.

• Original 51 member states sign the charter of UN in 1945

• UN comes into existence nearly every other country joins, notable exceptions: Taiwan, Vatican

Geneva Convention (1949)

Four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. On the treatment of civilians, prisoners of war (POWs), and soldiers who are otherwise rendered outside the fight, or incapable of fighting. Rules are 1) can’t hurt civilians 2) can’t use human shields 3) can’t use rape as a weapon 4) returning/exchanging POWs

Responsibility to Protect Doctrine (2005)

Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means.

Universal Declaration of the Rights of Indigenous People (2007)

It establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world. Canada did not join into 2010 because it was not consistent with the Canadian Constitutional Law.

Examples of law changing society

* Covid Laws, such as masks and self-isolation

Examples of society changing laws

• Civil Rights movement which eliminated segregation

• Women’s Liberation movement which gave more freedom and equal rights to women

• Gay Rights movements

• Abortion Rights movement

Civil Disobedience

A public, non-violent breach of law with the aim of bringing about a change in laws or policies 

What conditions are necessary for civil disobedience to be effective?

• intention

• publicity

• Convention

Lobby group

A group of people who band together and try to influence people in public office and politicians. The term may also allude to the action of exerting influence on public officials.

What lobby group started the Firearms Act (1995)?

Coalition for Gun Control - created after the mass shooting at L’Ecole Polytechnique

Intervenors

A procedure to allow a nonparty to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants.

Precedent

A decided case that furnishes a basis for determining later cases involving similar facts or issues. Example: Roe v Wade, R v Lavalee

What is the significance of the Royal Proclamation of 1763?

Set out the core elements of the relationship between Indigenous peoples and the Crown, established the recognition of Indigenous rights in Canada, and laid the foundation of the treaty-making process

What is the significance of the Oka Crisis (1990)?

Motivated the development of a national First Nations Policing Policy to try to prevent future incidents, and brought Indigenous issues into the forefront in Canada

Wet’suwet’en Pipeline standoff and different types of law

Treaty Law: The government needs to acknowledge that it is the Wet’suwet’en’s land

Case Law: Delgamuukw, precedent ruled that the government needs to get permission

Indigenous Law: Band council vs Hereditary Chiefs

Federalism

Federalism means the division of powers between different levels of government (ie. central government and provinces).

How is Canadian federalism different from American federalism?

• Division of Power

• The US is more “decentralized” meaning the states have more power than the central / federal government.

• Canada’s power is centralized with higher powers.

When have the premiers tested Canadian federalism?

• Quebec: Legault wants Quebec to be separate from Canada and be able to make independent decisions

• Alberta: Smith proposes sovereignty act to refuse to follow federal laws and court decisions that are deemed against Alberta’s interest/constitution

How is the US Supreme Court different from the Supreme Court of Canada?

Us judges are elected, whereas Canadian judges are appointed

Mahsa Amini

She was visiting Tehran when police arrested her for allegedly violating laws requiring women to wear a headscarf. The Iranian police beat her to death, and since then many protest have sparked in Iran about the laws concerning women’s rights, and police brutality.

Women under the Taliban

Extremely misogynistic towards women, and are also extremely abusive and violent. Women are suspended from being employed, have to wear a burqa at all times in public, not allowed to go to school, and were essentially just cut from public life

Jamal Khashoggi

A Saudi dissident journalist that was assassinated by agents of the Saudi government, for writing criticisms about the policies of Crown Prince Mohammed bin Salman.

Carding in Ontario

The process where police arbitrarily stop someone on the street and ask them for their personal information. It is also known to contribute to a disproportionate amount of black and Indigenous people being recorded in law enforcement databases.

Western Construct of Human Rights

Based on the principle of inalienable, innate rights that are awarded to all individual human beings. Human rights are founded on the rights of the individual, and as such individuals, not groups, have internationally recognized human rights

Extreme Individualism

A social theory that elevates the freedom of the individual over the collective. Example: US citizens

Sentencing Reform

The effort to change perceived injustices in the lengths of criminal sentences. The change of mandatory minimums for specific cases.

Justine Blainey

Her legal struggles with discrimination in sport made her a national figure in women's rights and issues with equality in sport, gave a voice to women’s hockey

Notwithstanding Clause

The notwithstanding clause, or Section 33 of the charter, gives parliaments in Canada the power to override certain portions of the charter for five-year terms when passing legislation.

What are some examples of the notwithstanding clause?

• Francois Legault’s government (Quebec) - passed Bill 21, which bans the wearing of religious symbols by workers in the public sector

• Francois Legault’s government (Quebec) - passed Bill 96, which affirmed that the only official language of Quebec is French

Hugo Grotius

He sought to minimize bloodshed in wars by constructing a general theory of law (jurisprudentia) that would restrain and regulate war between various independent powers, including states. His four principles were:

1. state/individual may not attack another

2. state/individual may not take what belongs to another

3. state/individual may not disregard a treaty/contract

4. state/individual may not commit a crime

What are other names for treaties?

It may also be known as an international agreement, protocol, covenant, convention, pact, or exchange of letters,

What function does "treaty-making" serve?

They provide a framework for living together and sharing the land Indigenous peoples traditionally occupied. These agreements provide foundations for ongoing co-operation and partnership as we move forward together to advance reconciliation.

How can international law be enforced?

This work is carried out in many ways - by courts, tribunals, multilateral treaties - and by the Security Council, which can approve peacekeeping missions, impose sanctions, or authorize the use of force when there is a threat to international peace and security if it deems this necessary. However, it can’t actually be enforced.

What are the limitations of international law?

• the lack of an international 'sovereign' – some form of international government.

• can not take all relevant factors into account.

• some regimes and some rules of international law are more effective than others

• too much emphasis on international criminal justice and civil rights, and too little emphasis on reparations, economic and social rights, and collective rights.

• structural bias

What are strengths of the UN?

• economic development

• social development

• international law

• humanitarian affairs

What are the weaknesses of the UN?

• inability to prevent conflicts

• lack of its own army

• the distribution of power is still unjust (same five countries from 1945 have the most power)

UN General Assembly

It is the main policy-making organ of the Organization. Comprising all Member States, it provides a unique forum for multilateral discussion of the full spectrum of international issues covered by the Charter of the United Nations.

Security Council

It has primary responsibility for the maintenance of international peace and security. It meets as needed to determine threats to peace or acts of aggression, and to take measures to maintain or restore international peace and security.

What is the difference between the UN General Assembly and the Security Council?

The General Assembly has comprehensive responsibilities for economic, social and trusteeship issues. In contrast, its powers in relation to peacekeeping are subsidiary to those of the Security Council, which has primary responsibility for maintaining international peace.

International Court of Justice (ICJ)

It is one of the six principal organs of the United Nations. It settles disputes between states in accordance with international law and gives advisory opinions on international legal issues.

International Criminal Court (ICC)

It is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression.

What is the difference between the ICJ and the ICC?

The International Court of Justice is a civil court that hears disputes between countries. The ICC is a criminal court that prosecutes individuals.

What is a weakness of the ICC?

It does not have its own independent military force, therefore it must rely on the cooperation of its member states to catch and prosecute individuals

Meditation

It is a process in which disputing parties agree to appoint a neutral third party to assist them in attempting to reach a voluntary settlement. The neutral third party does not make the decision, and the parties may terminate the process at any time. It is confidential and without prejudice. Examples: divorce, child custody, disputes between family members

Arbitration

It is perhaps the most popular and widely known dispute resolution process. Like litigation, it utilizes an adversarial approach that requires a neutral party to render a decision. Example: Collective disputes

Negotiation

It allows the parties to agree to an outcome which is mutually satisfactory. The actual terms of the agreement must be concluded by the parties and can be as broad or as specific as the parties desire.

Sanctions

They are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations.

Embargoes

They are legal prohibitions by a government or group of governments restricting the departure of vessels or movement of goods from some or all locations to one or more countries.

Magnitsky Act

It authorizes the U.S. government to sanction foreign government officials worldwide who are deemed to be human rights offenders, freeze their assets, and ban them from entering the U.S.\[1\]

Extradition

It is an action wherein one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. Example: Hassan Diab

Diplomatic Immunity

It is a principle of international law by which certain foreign government officials are recognized as having legal immunity from the jurisdiction of another country. Example: Andrei Knyazev - Russian diplomat who killed a woman drunk driving in Ottawa

Extraordinary Rendition

It is the legal procedure or process of sending a suspected criminal to another country to be interrogated or detained, usually for law-enforcement purposes. Example: Maher Arar

Montreal Protocol

It is an international treaty designed to protect the ozone layer by phasing out the production of numerous substances that are responsible for ozone depletion.

Kyoto Protocol

It is an international treaty that commits state parties to reduce greenhouse gas emissions, based on the scientific consensus that global warming is occurring and that human-made CO₂ emissions are driving it.

Climate Litigation

It is an emerging body of environmental law using legal practice to set case law precedent to further climate change mitigation efforts from public institutions, such as governments and companies.

Paris Agreement

It is an international treaty on climate change. Its goal is to limit global warming to well below 2, preferably to 1.5 degrees Celsius, compared to pre-industrial levels.

Greenbelts

A policy and land-use zone designation used in land-use planning to retain areas of largely undeveloped, wild, or agricultural land surrounding or neighboring urban areas.

COP27’s main achievements

For years, Western countries responsible for most historical emissions blocked discussion to avoid setting a potential precedent on financial liability. At COP 27, these nations dropped their objections and assented to creating the loss and damage fund

COP27’s problems

As expected, Cop27 was dominated by arguments about climate compensation due to poorer countries. Global warming has been caused by industrial nations who used fossil fuels to enrich themselves. They should therefore reimburse countries who are suffering most from climate change.

COP15’s main achievements

Nations adopted the Kunming-Montreal Global Biodiversity Framework agreeing to conserve and manage at least 30 percent of the world's lands, inland waters, coastal areas and oceans.

COP15’s problems

• setting the targets

• including indigenous leadership

Liberty vs Security

more liberty means less security, less security means more liberty  Example: Post 9/11 airplane requirements for more security, kirpans in schools for more liberty.

How are liberty and security different in the US vs Canada?

• canadian government’s role is to protect peace order and good government

• us government’s role is to protect life, liberty and the pursuit of happiness

New Areas of Law

• mental health law

• genealogical resources

• coercive control

• domestic abuse/battered women’s syndrome

• emotional abuse as a defence

• medical assistance in dying

• animal law

NAACP

National association for the advancement of coloured people

CORE

Congress of Racial Equity

Freedom Riders

black and white people ride buses to challenge segregation laws, get movement into deep south, get attention of the Kennedy administration

How is R v Lavallee an example of a case where the intervenor changed the outcome of the case?

feminist legal scholars and the testimony of a psychiatrist resulted in her acquittal, which establishes legal precedent

How can Canadian rights be limited or overruled?

• s.1 of the charter: reasonable limits clause, allows federal government to limit rights only to a point that is demonstrably justifiable. Example: jail (mobility rights)

• s.33 of the charter: notwithstanding clause, allows provincial government to limit rights guaranteed in s.2 and s.7-15 of the charter. Example: Bill 21 (Quebec) which prohibits Quebec citizens who work in public service from wearing religious symbols while fulfilling their civic duties.

Mandatory Minimum

Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law to impose these.

R v Kirkpatrick

• sexual assault case

• she consented to sex with a condom but he took it off the second time without her knowledge

• his initial acquittal is overturned by BC court of appeal and then the Supreme Court rules against him

R v Moses

sentencing: criminal justice system failing the community by reintroducing Moses after each release more dependent on alcohol and less capable of controlling his anger, failed Philip by worsening his hopes, abilities and prospects

Sentencing Circles

It is a restorative community sentence involving some form of restitution to the victim, community service, and treatment or counselling, and/or a period of custody. People sit in a circle and talk over the case, mostly for Indigenous people.

Can the grassroots affect change without the help of elites?

 Grassroots can’t affect change without the help of elites because the elites are the ones with influence, who are taken seriously by policy-makers and will add credibility to the grassroots’ campaign. Example: Cressy and carding

Do elites need to be activated by the grassroots before they can act?

Elites cannot make changes without the public being educated and aware, the activists creating strong feelings in the public which allow for elites to be able to make changes.

How does international conflict lead to new international laws or treaties?

• international conflict shows where there are problems, gaps, room for improvement in international legislation

• this leads to amendments and laws and treaties to prevent and mitigate similar conflicts in the future

What are other names for treaties?

• convention

• protocol

• agreement

• memorandum of understanding

• accord

• exchange of notes

• arrangement